How do I divide property in a divorce?

When you or your spouse file for legal separation or divorce:

• you can agree on how to divide your property; OR
• the court will divide your property for you. The court might not divide the property evenly (50% for you and 50% for your spouse), although that often happens.

There are two kinds of property in a divorce:

1. Marital Property

Marital property is property or money you got during the marriage but before:

• the start of a divorce action; OR
• the signing of a separation agreement. 

This property can be divided, even if only one spouse’s name is on the title. For example, if only your spouse’s name is on the deed, you would still get a share of your house's value in the divorce. Retirement plans are also marital property. Examples: pensions, IRAs, 401(k)s. The court generally divides the money earned for these plans during the marriage, but if you have a pre- or post-nuptial agreement that may decide what happens.

2. Separate Property

Separate property is property or money that: 

• belonged to you before the marriage OR that you got after the start of a divorce action OR after the signing of a separation agreement; OR
• that you inherited during the marriage; OR
• that you received as a gift from someone other than your spouse during the marriage: OR
• that you received as a personal injury award during the marriage; OR
• that you received in exchange for separate property or increases in value of separate property except where such increase results from contributions made by your spouse.

Separate property cannot be divided by the court. For example, the car you alone owned before marriage is separate property. In some cases, separate property can become marital property, like if you use your own money from before the marriage to buy a house for you both. 

To get ready to divide the property, make a list of all of your separate and marital property.

During the divorce, you and your spouse must report your income, your property, and your debts. If you and your spouse cannot agree on what is marital or separate property, the court will decide.

The court decides how to divide marital property, by looking at:

• The income and property of you and your spouse when you got married
• How long your marriage lasted
• The age, health, and earning potential of you and your spouse
• Whether the parent with custody of the children needs the home or other marital property while the children are growing up
• The loss of inheritance and pension benefits
• The effort and contributions of a spouse in the household (for example, a homemaker sacrificing their career)

Important things to keep in mind

• Take your name off any joint accounts you and your spouse opened. You share responsibility for debt you co-signed with your spouse. If you continue to share accounts, you share your spouse's future debts too. 
• You can be sued if your spouse fails to pay the debts that you co-signed. Creditors can sue you even if a court order says your spouse is responsible. To protect yourself, write to creditors to ask them to close any joint accounts.
• If you own a house, the court can give the house to you or your spouse, or order the home to be sold. The court considers how much the home is worth, the mortgage, other housing options, and more.
• The court can delay the sale of the house for the children and the parent with custody. The court can give “exclusive occupancy rights” to the parent with custody of the children. This means the custodial parent has the right to live in the house and the other spouse must find somewhere else to live. This is usually until the children graduate high school. 
• Exclusive occupancy rights can also be for the safety of you or your spouse during the divorce.
• Courts can also give orders of protection, to keep a dangerous spouse away from the home.

In most cases, divorcing couples agree how to divide the property. The court will encourage you to work together. If you need help to agree with your spouse, contact a mediator before you ask the court to decide.